Ministerial standards and the mechanisms for enforcing them have been in the news more than usual over the course of the last twelve months, making clear the limitations of the current rules and systems of regulating ministerial behaviour. In May, the Unit hosted an expert panel to discuss how the standards regimes work in the UK, and what reforms might be desirable. Dave Busfield-Birch summarises the contributions.
On 24 May, the Constitution Unit hosted an online webinar entitled Ministerial Standards in Westminster and Beyond. Unit founder Robert Hazell chaired the event, which had three distinguished panellists: Alex Allan, former independent adviser to the Prime Minister on ministerial interests; Susan Deacon, a former minister in Scotland who also sat on the Scottish Parliament’s Standards and Procedures committees; and Richard Thomas, a member of the Advisory Committee on Business Appointments (ACOBA), which advises ministers and senior officials on potential conflicts of interest when they take up appointments after leaving Whitehall.
This post summarises the main contributions of the speakers: the full event, including the lively and informative Q&A, is available on our YouTube page.
Alex Allan started his contribution by offering a little bit of history about the ‘rather strange document’ that is the Ministerial Code. Something similar to the Code has been in place since the Attlee government, but perhaps the most significant changes came in 1995 when the Committee on Standards in Public Life (CSPL) produced its first report, and outlined ‘Seven Principles of Public Life’, which are commonly referred to as the ‘Nolan principles’.
Another significant change came in 2007, when the Brown government published a paper on the governance of Britain, which resulted in the creation of the role of independent adviser on ministerial interests, a title held by Allan from 2011 until his resignation in 2020. Where there is an allegation about the conduct of a minister that the Cabinet Secretary feels warrants further investigation, the matter will be referred to the independent adviser. However, most of the work of the independent adviser is of little media interest, and involves dealing with declarations of ministers’ interests, which are examined by their permanent secretary and the propriety and ethics team at the Cabinet Office, before being examined by the independent adviser.
Allan said that ministers generally want to abide by the Code, but added that he does think the time is right for further consideration of the role of the adviser, as CSPL is currently doing. He also welcomed the government’s acceptance of most of the recommendations made in a recent letter by CSPL’s Chair, Lord (Jonathan) Evans. In particular, Allan said it was a ‘significant’ difference that the independent adviser can now require their advice to be published in ‘a timely manner’. He said that although there had never been issues during his tenure about whether advice would be published, there were occasionally ‘quite long gaps’ between the date of his advice and the time of publication.
However, Allan did note that the Prime Minister had not granted the new independent adviser the right to initiate investigations, which he labelled a ‘mistake’. He also observed that one of the problems with the current system is that it creates ‘a lack of confidence’ when the Prime Minister announces that he’s cleared a minister, without there being any investigation. He said that although an independent adviser would come to the same conclusion as the Prime Minister in the majority of cases, the outcome is ‘more credible’ if it comes from someone independent, rather than the leader of the government.
Susan Deacon offered what she called ‘a whistle-stop tour’ of the standards regime in Scotland. She noted that in the early months and years of devolution, a considerable amount of time was spent putting in place the infrastructure within which the institutions would operate. Arrangements for parliamentary standards have since been absorbed into a commissioner for ethical standards, which covers national as well as local government. She observed that although a First Minister has stepped down over expenses issues, there have been relatively few incidences of public officials getting into trouble over financial matters, compared to Westminster. As for why this might be, she said that it is partially because the rules are stricter in Scotland. She also noted that there have been fewer MSPs with a high personal amount of wealth, or significant business connections, compared to their Westminster counterparts.
As far as ministers are concerned, there have been a number of ministerial resignations due to wrongdoing, but they have tended to be more because of personal conduct, such as inappropriate sexual behaviour. The first version of the Scottish ministerial code was deemed important enough to be discussed at the very first meeting of the Scottish Cabinet, which she attended. Several revisions have been made since then for various reasons: for example, the code was revised to prohibit ministers from making misleading statements to the Scottish Parliament, and revised to require ministers to declare when they have received legal advice. The current version of the Code was produced in 2018.
Comparing the Scottish code with the UK version, she noted that the former is significantly longer, and that this is because it contains more detail than its London counterpart. As is the case in London, the First Minister is the custodian of the Code, which raises questions about what happens when they are the subject of a complaint. As in the UK, the First Minister appoints an independent adviser to look at potential breaches of the Code. The Scottish Code has been the subject of much debate in recent months due to the issues that arose from the handling of sexual harassment complaints made against the former First Minister Alex Salmond, and how his successor, Nicola Sturgeon handled them. A parliamentary committee was established to look into these issues, which held sessions over the course of a year, 22 of which involved the examination of witnesses. Its report was soon followed by one authored by one of the two independent advisers on the Code, James Hamilton, who concluded that Sturgeon had not breached it. These investigations ‘shone a spotlight’ on a whole range of issues, including the role of permanent secretaries and the independence of the work of parliamentary committees.
Deacon concluded by saying that these issues need to be discussed ‘a lot more’ than is usually the case, that this needs to take place in a way that casts more light and less heat, and that it is necessary to be realistic about the limitations of rules, no matter how effective they are and how competent the people who advise on them.
Richard Thomas started by explaining that ACOBA is concerned with the behaviour of people no longer in public office, advising on individual cases where a former minister or senior civil servant wants to take on a new job within two years of leaving office. ACOBA has three political nominees, including the chair, Lord (Eric) Pickles, and six independent members – of which Thomas is one – and a four-person secretariat.
The rules, which are effectively owned by the government, have ‘a mixture of aims’, but are essentially there to maintain propriety, avoid the improper use of official information, prevent conflicts of interest, and forestall suggestions of reward for decisions taken whilst in office. At the same time, the rules and those who apply them recognise that interchange between public and private sectors can be ‘healthy’, provided there are also sufficient safeguards, and that good people should not be deterred from entering public life.
The process is initiated by the former minister or official making ‘a fairly detailed application’ for each job they wish to take on. The committee then seeks factual and advisory input from that person’s former department, and ACOBA’s secretariat carries out a detailed risk assessment. There is a steady turnover of cases – about six or seven per week, split roughly 50-50 between former ministers and ex-civil servants.
The process leads to one of three results:
- A ‘green light’, with fairly minimal restrictions in place. This would most commonly happen where the role is unpaid, is in the academic or voluntary sectors, or has no connection whatsoever with the applicant’s government role.
- An ‘amber light’, which will usually involve stricter restrictions and the imposition of a waiting period before the role can be taken up. The length of the waiting period will depend on the specifics of the individual case. This is by far the most common outcome.
- A ‘red light’, which results in the person being advised that they should not take up the role until the two-year period has elapsed. This is relatively rare.
In red light cases, the advice is not published, providing it is followed. In all other cases, the advice is made available to the public. Breaches of the rules are also published.
As for the pros and cons of the system, Thomas noted it is not backed by statutory powers, but that ‘it seems to work’. Although it is impossible to say for certain, there seem to be very few breaches of the rules, either due to breaking the restrictions, or by failing to apply to ACOBA in the first place. Thomas said the transparency of the system was ‘a powerful constraint’ on behaviour.
The most common criticisms are that the committee has no formal sanctions, no power to investigate and that their main weapon is the ability to ‘name and shame’. Thomas said that there is ‘no great appetite’ to go down the road of a statutory regime, which has its ‘pluses and minuses’, but also acknowledged that the system did to some extent rely on ‘honourable behaviour’.
About the author
Dave Busfield-Birch is the editor of the Constitution Unit blog and the Unit’s triannual constitutional news roundup, Monitor, for which he regularly contributes pieces on parliament’s harassment and bullying policies. You can subscribe to Monitor for free: the next issue is due to be released on 6 July.